New York State Court of Claims

New York State Court of Claims
TESSITORE v. STATE OF NEW YORK, # 2020-038-571, Claim No. 134991, Motion No. M-95843

Synopsis

Defendant's motion to dismiss for failure to comply with the substantive pleading requirements of Court of Claims Act 11(b) granted in part. Claim failed to sufficiently allege causes of action sounding in false arrest/imprisonment or malicious prosecution, but complied with 11(b) with respect to causes of action for assault/battery and negligence.

Case information

UID: 2020-038-571
Claimant(s): JAMES TESSITORE
Claimant short name: TESSITORE
Footnote (claimant name) :
Defendant(s): STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 134991
Motion number(s): M-95843
Cross-motion number(s):
Judge: W. BROOKS DeBOW
Claimant's attorney: E. STEWART JONES HACKER MURPHY, LLP
By: James C. Knox, Esq.
Defendant's attorney: LETITIA JAMES, Attorney General
of the State of New York
By: Christina Calabrese, Assistant Attorney General
Third-party defendant's attorney:
Signature date: November 10, 2020
City: Saratoga Springs
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)

Decision

Claimant filed this claim seeking compensation for injuries allegedly sustained when he was assaulted by two New York State Police Troopers on April 11, 2020. Defendant has filed this pre-answer motion to dismiss the claim for lack of jurisdiction and failure to state a cause of action on the ground that the claim fails to comply with the substantive pleading requirements of Court of Claims Act 11 (b). Claimant opposes the motion.

The claim alleges that at approximately 9:30 p.m. on April 11, 2020, at an identified address in Halfmoon, New York, "[c]laimant was caused to sustain serious personal and permanent injuries and related damages" when Troopers Miguel Orabona and Michael Tietz "negligently, carelessly, recklessly and intentionally assaulted [claimant] without proper or sufficient cause or justification" (Claim No. 134991, 7). The claim alleges defendant's "negligence includes but is not limited to a negligent failure to appropriately hire, recruit, train, discipline and/or supervise Troopers Orabona and Tietz " (id., 8). The claim alleges that it is for "personal, psychological and emotional injuries, false arrest, unlawful imprisonment, use of excessive force, malicious prosecution, assault and battery, loss of enjoyment of life, pain and suffering and medical expenses" (id. 4).

Court of Claims Act 11 (b) requires, among other things, that "[t]he claim shall state the time when and place where such claim arose, the nature of same, [and] the items of damage or injuries claimed to have been sustained." The pleading must set forth sufficient facts to satisfy each of the pleading requirements set forth in Court of Claims Act 11 (b) (see Kolnacki v State of New York, 8 NY3d 277, 280-281 [2007], rearg denied 8 NY3d 994 [2007), and the failure to do so is a fatal defect in subject matter jurisdiction requiring dismissal of the claim (see Lepkowski v State of New York, 1 NY3d 201, 209 [2003]; see also Kolnacki, 8 NY3d at 281). The purpose of the pleading requirements of Court of Claims Act 11 (b) is "to enable the State . . . to investigate the claim[s] promptly and to ascertain its liability under the circumstances" (Lepkowski, 1 NY3d at 207 [internal quotation marks omitted]). "Although absolute exactness is not required, the claim must provide a sufficiently detailed description of the particulars of the claim . . . [and] defendant is not required to ferret out or assemble information that section 11 (b) obligates the claimant to allege" (Morra v State of New York, 107 AD3d 1115, 1115-1116 [3d Dept 2013] [internal quotations and citations omitted]).

Defendant argues that the claim must be dismissed for lack of jurisdiction due to the failure to comply with Court of Claims Act 11 (b) on the ground that "claimant['s] efforts at complying with the jurisdictional 'place where' requirement are clearly inadequate and any attempt to investigate or ascertain liability would require the State to engage in a guessing game as to where claimant was alleged[ly] assaulted," and that courts "have routinely held that vague descriptions of the scene are insufficient to satisfy the requirements of" Court of Claims Act 11 (b) (Calabrese Affirmation, 6-7). Defendant further argues that because the claim's allegations consist of "generalized reference[s] to the cause of action and place of the alleged incident" with "no information to support these generalized allegations," it is "impossible on the face of these pleadings for defendant to determine what happened on April 11, 2020, where it happened or simply put - to determine the nature of the claim" (id. at 9). Defendant argues that the allegations set forth in the claim "are not specifically detailed enough to satisfy the pleading requirements of Court of Claims Act 11 (b)" inasmuch as the claim "completely omits any facts giving rise to or regarding the manner in which the incident occurred" and "references a wholly unspecified 'assault' but completely omits a description of the manner in which the assault occurred" (id. at 12-13).

Claimant argues in opposition to the motion that the allegations set forth in the claim "are both jurisdictionally compliant and met the pleading requirements" inasmuch as the claim includes specific allegations regarding the time and place of the alleged assault, and that the claim sufficiently alleges that the nature of the claim - i.e. that "claimant was assaulted by two named New York State troopers without justification because of defendant's negligence including the failure to appropriate[ly] hire, train, and supervise the troopers" - and damages in the form of "personal, psychological, and emotional injuries . . . sustained as a result of defendant's conduct" (Knox Affirmation, 10). Claimant argues that "[n]othing more is required at the pleading stage of litigation," and that "accepting the allegations of [the] claim as true as is required on a motion to dismiss, it is without question that [claimant] states a cause [of action] against defendant" (id. at 10-11). Claimant further argues that the claim "sufficiently pleads liability under a negligent theory of failure to train and supervise the named troopers" based upon the allegations "that it was the State's failure to properly hire, train, and supervise [Troopers Orabona and Tietz], and such failure resulted in . . . claimant's injuries" (id. at 12).

The claim includes a specific street address where the alleged events occurred, and thus it is perplexing that defendant argues that the claim failed to adequately plead the place where the claim arose. Moreover, defendant has failed to demonstrate why the street address is insufficient for the State to investigate this claim (see Bakalis v State of New York, UID No. 2014-049-043 [Ct Cl, Weinstein, J., July 25, 2014 [claim containing street address where claim allegedly arose sufficiently complied with Court of Claims Act 11 (b)]), or to identify what additional, more specific information the State requires with respect to the place where the claim arose that would allow it to investigate the claim. Inasmuch as the claim alleges the specific location where the events allegedly ocurred, it patently complies with the requirement in Court of Claims Act 11 (b) that claimant plead the place where the claim arose, and it will not be dismissed on that ground.

Turning next to defendant's argument that the claim fails to adequately plead the nature of the claim, the claim can fairly be read as alleging that claimant was assaulted by Troopers Orabona and Tietz, and asserts the following causes of action: (1) assault and battery/excessive force; (2) negligent hiring, training and supervision; (3) false arrest and unlawful confinement; and (4) malicious prosecution. In the Court's view, the allegations in the claim alert defendant that claimant was subjected to an assault and battery and/or excessive force by the Troopers named in the claim, and that it also seeks to hold defendant liable for negligence in its hiring, training, and supervision of the Troopers. Thus, the Court concludes that with regard to the causes of action sounding in assault and battery, excessive force, and negligent hiring, training, and supervision, the claim does not contain conclusory allegations and provides defendant with adequate information to investigate these claims and ascertain its liability, and thus the claim satisfies claimant's burden under Court of Claims Act 11 (b).

However, the Court concludes that the claim is bereft of any factual allegations to permit defendant to investigate and ascertain its potential liability with regard to the causes of action for false arrest, unlawful confinement, and malicious prosecution. With regard to the false arrest and unlawful confinement causes of action, the claim completely fails to allege that claimant was arrested or taken into custody and the length of claimant's confinement (see generally Guntlow v Barbera, 76 AD3d 760, 762 [3d Dept 2010], appeal dismissed 15 NY3d 906 [2010], citing Broughton v State of New York, 37 NY2d 451, 456-457 [1975], cert denied sub nom Schanberger v Kellogg, 423 US 929 [1975]). With respect to the cause of action for malicious prosecution, the claim wholly fails to allege whether claimant was criminally prosecuted and whether the charges were terminated in his favor (see generally Broughton, 37 NY2d at 457; Urbank v Big Scott Stores Corp., 92 AD2d 665, 666 [3d Dept 1983] ). Therefore, the Court concludes that the claim is manifestly noncompliant with Court of Claims Act 11 (b) with regard to the false arrest, unlawful confinement, and malicious prosecution claims, and those causes of action must be dismissed.

Claimant's alternative request that he be granted late claim relief "in order to amend his claim" in the event that the Court determines that the claim is jurisdictionally defective for failure to comply with the pleading requirements of Court of Claims Act 11 (b) (Knox Affirmation, 13) will be denied with respect to false arrest, unlawful imprisonment, and malicious prosecution claims. Claimant has not cross-moved for such relief and, in any event, has not submitted a proposed claim or affidavit addressing the factors set forth in Court of Claims Act 10 (6) in support of his request for permission to file a late claim. As a result, late claim relief cannot be granted at this time.

Accordingly, it is

ORDERED, that defendant's motion number M-95843 is GRANTED IN PART, to the extent that the causes of action sounding in false arrest, unlawful imprisonment, and malicious prosecution are hereby DISMISSED; and it is further

ORDERED, that defendant's motion number M-95843 is DENIED in all other respects; and it is further

ORDERED, that defendant is directed to file and serve the answer within thirty (30) days of the filing of this Decision and Order.

November 10, 2020

Saratoga Springs, New York

W. BROOKS DeBOW

Judge of the Court of Claims

Papers considered:

1. Claim No. 134991, filed July 1, 2020;

2. Notice of Motion, dated September 8, 2020;

3. Affirmation of Christina Calabrese, AAG, in Support of Motion to Dismiss in Lieu of Answer, dated September 8, 2020, with Exhibit A;

4. Affirmation of James C. Knox, Esq., in Opposition to Defendant's Motion to Dismiss, dated September 30, 2020.